Liberty Nkomo and Mbongeni Masiza v The State

On 26 April 2021 at around 1800 hours, the complainant Thokozile Zororo was inside Mutetso Investment shop with Mostaff Murombo and Muchaita Marodza preparing to close when the two applicants and two accomplices (still at large) entered armed with pistols. They threatened to shoot the complainant if she did not surrender cash. One accused fired a gunshot on the floor while another hit the complainant on the head with the butt of a pistol. The 1st applicant (Liberty Nkomo) was allegedly identified by Muchaita Marodza taking cash amounting to ZAR500,000 and US$6,000. The 2nd applicant (Mbongeni Masiza) and two other accomplices stood guard at the door with pistols. The accused persons fled firing gunshots in different directions. Both applicants were arrested following police investigations. The 1st applicant's clothing worn during the crime was identified and recovered. Evidence suggested the 1st applicant had been hiding in South Africa after fleeing a pending rape case. The applicants applied for bail pending trial, denying they were at the scene and that they were properly identified.

• Whether the applicants discharged the onus of showing on a balance of probabilities that it is in the interests of justice for them to be released on bail
• Whether the applicants presented sufficient evidence to discharge the evidentiary burden in a Schedule 3 Part 1 offence
• Whether there was a real risk that the applicants would abscond and evade trial if granted bail
• Whether the strength of the State's prima facie case and the seriousness of the offence warranted refusing bail

The application for bail was dismissed.

In bail applications for Schedule 3 Part 1 offences, the applicant bears the burden of showing on a balance of probabilities that it is in the interests of justice to be released on bail. This evidentiary burden cannot be discharged by mere submissions or statements in a bail statement - it must be discharged by evidence placed before the court through affidavits or testimony. In assessing flight risk, courts must consider not only the strength of the prosecution's case and probability of conviction, but also the seriousness of the offence and the likelihood of a severe sentence, as the expectation of substantial imprisonment provides an incentive to abscond. Where there is a cognisable indication that an accused would evade trial if released from custody, the bail court serves the interests of justice by refusing bail, and the liberty of the accused must give way to the proper administration of justice.

The court observed that while it might be possible to refuse bail for purposes of protecting society where cases of a particular type are rampant, such can only be justified in extreme circumstances. The court found that this case did not represent one of those extreme circumstances and declined to factor this aspect into its decision. The court also noted that when persons are jointly charged and apply for bail together, a fair trial requires that their individual cases be carefully evaluated, as treating them as a group might deny the court the opportunity to see beyond the group and might result in painting all applicants with one colour. The court further noted that in bail applications, courts may rely on evidence of the investigating officer in appropriate cases.

This case illustrates the application of bail principles in Zimbabwe for Schedule 3 Part 1 offences (robbery involving firearms), emphasizing that: (1) applicants must discharge an evidentiary burden through proper evidence (affidavits or testimony), not mere statements in bail applications; (2) the bar for granting bail is higher for serious scheduled offences; (3) courts must carefully weigh the strength of the State's prima facie case, the seriousness of the offence, and the likelihood of a severe sentence in assessing flight risk; (4) where applicants are jointly charged, courts must evaluate each individual's case rather than treating them as a group; and (5) evidence of prior absconding behavior is relevant to assessing flight risk. The case reinforces that the liberty of accused persons must give way to the proper administration of justice where there is a cognisable indication of potential flight.